'Provocation' no excuse for stabbing own brother, says judge

Peter Hardwick
Journalist
Peter started in 1976 as apprentice typesetter/comp and has 32 years with The Chronicle in three stints (in between working/holidays in UK/Europe, Brisbane and Melbourne). Entered editorial from comp room in 1996.

A TOOWOOMBA man who stabbed his older brother for teasing him about his medical condition has avoided actual jail time.

Brendan Mark Whittaker suffered from epilepsy and a painful skin disease for which he was medicated and was being teased by his older brother that his epilepsy wasn't as serious as he made out during an argument at home in Toowoomba on July 18, last year.

The 27-year-old "snapped", went back inside the house and retrieved a knife before returning to his older brother in the yard, Toowoomba District Court heard.

With their father getting between the two warring siblings to try and keep them apart, Whittaker had reached around his father and stabbed his brother in the thigh, causing a 5cm laceration and puncturing skin and muscle, Crown prosecutor Alysha Ballantyne told the court.

The older brother was taken to the hospital where his wound was washed and cleaned before he was released the next day, she said.

Whittaker pleaded guilty to a charge of wounding.

Ms Ballantyne submitted a sentence of up to two years in jail was within range with some of the term actually served in custody.

However, defence barrister David Jones said his client was being prosecuted mainly on his own admissions without which the prosecution would have had difficulty in securing a conviction as the victim brother was "an unwilling complainant".

Mr Jones provided to the court a number of letters from his client, the complainant stating he didn't want to see his brother jailed, his client's partner and parents as well as a letter from his client's doctor that outlined his medical conditions.

His client suffered a very painful condition and was in severe pain at the time when he had "snapped" at the degree of torment coming from his brother, he said.

Judge Dennis Lynch QC said he accepted the defendant's brother had been "quite provocative" but that was no excuse for taking a knife and stabbing him.

However, accepting that this incident appeared out of character for Whittaker, Judge Lynch sentenced him to 12 months in jail but ordered the whole term be suspended for 18 months.